[QUEEN'S BENCH DIVISION]

REGINA v. SECRETARY OF STATE FOR THE HOME

DEPARTMENT, Ex parte RUDDOCK AND OTHERS

Crown - Minister, determination by - Whether reviewable by court - Interception of communications - Warrant naming telephone user - Allegation that issue of warrant contrary to guidelines - Secretary of State maintaining policy of silence in interests of national security - No evidence of damage to national security - Whether court to entertain application - Whether recipients of telephone calls having sufficient interest to claim relief

Crown - Minister's determination - Legitimate expectation - Criteria for interception of communications - Issue of warrant - Whether person named entitled to expect guidelines to be adhered to

Judicial Review - Time bar - Delay - Application outside three-month period - No satisfactory explanation - Matter of general importance - Whether application to proceed - R.S.C., Ord. 53, r. 4(1)

C., an active and prominent member of the Campaign for Nuclear Disarmament, was also a member of the Communist Party. In March 1985, in a television broadcast it was asserted that his telephone had been tapped in 1983. One of the participants in the programme was a former intelligence officer, M. Before the programme was broadcast C. had had no suspicion that his telephone might have been tapped. In July 1985 M. swore an affidavit that she had applied for a warrant to monitor C.'s telephone calls and that a warrant had been issued by the Secretary of State in August 1983. She claimed that the warrant had not been issued in accordance with the criteria for the interception of communications, which had been published by the government of the day on six occasions between 1952 and 1982. The delay in swearing her affidavit had been caused, in part, by her retraining for a new occupation since leaving her former employment. C. and two other prominent members of the C.N.D. whose telephone calls to C. would have been intercepted, instituted proceedings on 29 July 1985 for a declaration that the Secretary of State had improperly authorised the interception of C.'s telephone calls. The only evidence adduced on behalf of the Secretary of State was an affidavit by the Permanent Under-Secretary of State in which he deposed that it was the invariable practice to decline to confirm or deny the existence of any warrant for the interception of communications. He further deposed that he personally scrutinised all applications for such warrants and that none had been issued which did not meet the published criteria. The Secretary of State raised the issue of national security as, in effect, a plea in bar.

On the application for a declaration: -

Held, (1) that since the only allegation of tapping that had been made related to C.'s telephone only C. could apply to the court for a declaration that his telephone calls had improperly been subjected to interception and that the other applicants lacked sufficient interest to apply for relief; that although the delay in instituting proceedings was well over the three-month period prescribed by R.S.C., Ord. 53, r. 4(1), and had not been satisfactorily explained, in view of the general importance of the issues, the court would not reject the application on the ground of that delay; that the court would not abdicate its judicial

function merely because the Secretary of State maintained a policy of silence on the issue of interceptions in the interests of national security; but that cogent evidence of potential damage to national security flowing from the trial of the issue would have to be adduced to justify any modification to the court's normal procedure; and that in the absence of any such cogent evidence and in the absence of any danger that the Secretary of State would be compelled to abandon his policy of silence there was no ground on which the court could, in its discretion, refuse to consider the application; that although the jurisdiction of the court had been superseded under the Interception of Communications Act 1985 with effect from 10 April 1986, the court would not decline to decide an issue which arose before that Act came into operation (post, pp. 1484H - 1485A,F-G, 1491F-G, 1492A-B, C, E, 1493B-C).

(2) That, as a result of the publication of the criteria for the interception of communications between 1952 and 1982 and their regular application when authorisations for interceptions were considered, C. had a legitimate expectation that the criteria would be faithfully applied in his case; and that the doctrine of legitimate expectation could not be restricted to cases concerning the right to be heard; that, although evidence had been adduced to show that an authorisation to intercept C.'s telephone calls had been issued in August 1983 and renewed in September that year, there was no evidence that the authorisation was thereafter renewed, nor that the resultant information had been used for party political purposes contrary to the published criteria, nor that the decision of the Secretary of State to authorise the interceptions was so irrational as to be insupportable; and that, accordingly, C.'s application for a declaration must fail (post pp. 1497A-B, E-G, 1499B, 1500B-C, 1501H, 1502B).

Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, H.L.(E.) applied.

The following cases are referred to in the judgment:

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223; [1947] 2 All E.R. 680, C.A.

Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] 2 A.C. 629; [1983] 2 W.L.R. 735; [1983] 2 All E.R. 346, P.C.

Bourgoin S.A. v. Ministry of Agriculture, Fisheries and Food [1986] Q.B. 716; [1985] 3 W.L.R. 1027; [1985] 3 All E.R. 585, Mann J. and C.A.

Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374; [1984] 3 W.L.R. 1174; [1984] 3 All E.R. 935, H.L.(E.)

Findlay, In re [1985] A.C. 318; [1984] 3 W.L.R. 1159; [1984] 3 All E.R. 801, H.L.(E.)

Hollington v. F. Hewthorn & Co. Ltd. [1943] K.B. 587; [1943] 2 All E.R. 35, C.A.

Malone v. Metropolitan Police Commissioner [1979] Ch. 344; [1979] 2 W.L.R. 700; [1979] 2 All E.R. 620

Malone v. United Kingdom (1985) 7 E.H.R.R. 14, E.C.H.R.

O'Reilly v. Mackman [1983] 2 A.C. 237; [1982] 3 W.L.R. 1096; [1982] 3 All E.R. 1124, H.L.(E.)

Paul (R. and W.) Ltd. v. Wheat Commission [1937] A.C. 139; [1936] 2 All E.R. 1243, H.L.(E.)

Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1960] A.C. 260; [1959] 3 W.L.R. 346; [1959] 3 All E.R. 1, H.L.(E.)

Raymond v. Honey [1983] 1 A.C. 1; [1982] 2 W.L.R. 465; [1982] 1 All E.R. 756, H.L.(E.)

Reg. v. Secretary of State for Home Affairs, Ex parte Hosenball [1977] 1 W.L.R. 766; [1977] 3 All E.R. 452, D.C. and C.A.

Reg. v. Secretary of State for the Home Department, Ex parte Asif Mahmood Khan [1984] 1 W.L.R. 1337; [1985] 1 All E.R. 40, C.A.

Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch. 149; [1969] 2 W.L.R. 337; [1968] 3 All E.R. 795, C.A.

Zamora, The [1916] 2 A.C. 77, P.C.

APPLICATION for judicial review.

By notice of application dated 29 July 1985 Mrs. Joan Ruddock, John Idris Cox and Monsignor David Bruce Kent applied to the High Court for judicial review by way of orders of prohibition and certiorari and two declarations against the Secretary of State for the Home Department. The claim for relief on which the applicants relied at the hearing was for a declaration that the Secretary of State was at all material times without authority or power to authorise or require or procure or renew the interception and monitoring of the communications by telephone of any of the applicants. During the hearing the applicants were permitted to add a claim for damages or an inquiry as to damages against the Secretary of State for misfeasance.

The facts are stated in the judgment.

Stephen Sedley Q.C. and Jonathan Caplan for the applicants.

John Laws for the respondent.

TAYLOR J. This is an application for judicial review made by three prominent members of the Campaign for Nuclear Disarmament (the "C.N.D."). Mrs. Joan Ruddock has occupied the chair of that organisation since 1981. John Idris Cox was chairman from 1971 to 1977 and has been vice-president since 1981. David Bruce Kent was chairman from 1977 to 1979 and became general secretary in 1980. Each complains that the applicant John Cox's telephone calls had been intercepted unlawfully pursuant to a warrant signed by the Secretary of State for the Home Department in or about August 1983 and renewed from time to time.

Relief sought

Originally the relief claimed included orders of prohibition and of certiorari and two declarations. Of those Mr. Sedley, for the applicants, in the end seeks only one declaration in the following terms:

"That the Secretary of State for the Home Department was at all material times without authority or power to authorise or require or procure or renew the interception and monitoring of the communications by telephone of any of the applicants.."

By an unopposed amendment, which I allowed during the hearing, there is also a claim for damages or an inquiry as to damages against the same Secretary of State for misfeasance in a public office.

Parties

It is convenient to start by considering whether all three applicants are properly joined. The only warrant said to have been signed and executed relates to John Cox. Only his telephone is said to have been tapped. No decision of the Secretary of State vis-a-vis the other two applicants is the subject of challenge. Their case is put in this way: that in the course of tapping Mr. Cox's telephone, calls which they had with

him were intercepted. Such tapping of their conversations was, they say, unlawful, and they are therefore entitled to relief.

In these circumstances and on that basis, I do not consider that the applicants Mrs. Ruddock and Monsignor Kent have a sufficient interest to apply for any relief. It is fair to say that Mr. Sedley did not press their entitlement to relief with his greatest vigour. If a warrant was lawfully issued to tap Mr. Cox's phone, no judicial review of its execution and no relief could be available to any of those with whom he spoke. Otherwise, a Secretary of State who lawfully ordered the phone of a terrorist to be tapped would be open to judicial review at the instance of his butcher, his baker and whichever other innocents were intercepted on his line. Conversely, if a warrant was signed unlawfully, the unlawfulness would be due to Mr. Cox as an individual falling outside the guidelines or criteria justifying such a warrant. Whether or not Mr. Cox so fell must be an issue arising upon his application and his alone. The warrant sought to be challenged was allegedly personal to him; it is not suggested that warrants existed for the other applicants or for the C.N.D. in general or for its leaders. I therefore proceed to consider the case on the basis of Mr. Cox's application only.

Delay

His case arises from statements made by a woman named Catherine Ann Massiter who for a number of years was employed by M.I.5 as an intelligence officer, until she left in December 1983. During the latter part of her service it seems she became disenchanted with the requirements of her job. On 8 March 1985 she appeared on a television programme called "M.I.5's Official Secrets." I have not seen the programme, nor a transcript of it, but there is evidence that in its essentials it contained the material now relied upon in support of the applicant's case.

Clearly, before the television programme, the applicant had and could have had no suspicion that a warrant to tap his phone might have been signed in 1983. I therefore think it is plain that on the question of delay, there was good reason for no application being made before March 1985. However, proceedings were not brought until 29 July 1985, so the further delay is in itself well over the three months' maximum prescribed in R.S.C., Ord. 53, r. 4. It is said to be due to Miss Massiter's involvement in retraining as a gardener and her anxiety to be cautious in the drafting of her affidavit, which was not sworn until 12 July 1985. I have seriously considered what effect I should give to this further delay. I am unimpressed by the reasons for it. But I have concluded that since the matters raised are of general importance, it would be a wrong exercise of my discretion to reject the application on grounds of delay, thereby leaving the substantive issues unresolved. I therefore extend time to allow the applicant to proceed.

C.N.D.

The following facts are not in dispute. The C.N.D. was founded in 1958. It now has over 100000 national members and about 350000 members of local groups. By its constitution it is not affiliated to any political party or group. Its main aim is the unilateral abandonment by Great Britain of nuclear weapons, bases and alliances. It has therefore at all material times been opposed to government defence policy.

Criteria applicable to interceptions

Guidelines or criteria within which the Security Service has been required to operate when considering the interception of communications have been laid down and published in a series of pronouncements. One can start with Sir David Maxwell-Fyfe's directive to the Director-General of the Security Service in September 1952. Next was the Birkett report of October 1957 (Cmnd. 283). Then followed Lord Denning's report on the Profumo Affair in 1963 (Cmnd. 2152). On 26 February 1975 Lord Harris, the Minister of State at the Home Office, in a House of Lords debate defined "subversive activities." In April 1980 a white paper on Interceptions was published (Cmnd. 7873). Finally came Lord Diplock's report in March 1981 (Cmnd. 8191). Each of these is exhibited in the present case, and I do not therefore give extensive citations from them. It suffices to summarise those principles relevant to the present case (excluding therefore references to espionage and terrorism) consistent through all six pronouncements.

The function of the Security Service is the defence of the realm as a whole from, inter alia, the actions of persons who and organisations which may be judged subversive to the state. Subversive activities are those which threaten the safety or wellbeing of the state and which are intended to undermine or overthrow Parliamentary democracy by political, industrial or violent means. A warrant to intercept should issue only where there is reasonable cause to believe that major subversive activity is already being carried on and is likely to inJure the national interest. The material reasonably likely to be obtained by the interception must be of direct use to the Security Service in its functions which include keeping up to date its information about subversion. Normal methods of investigation must either have failed or be unlikely to succeed. Interception must be strictly limited to what is necessary to the Security Service's defined function and must not be used for party political purposes or for the purposes of any particular section of the community.

Evidence for the applicant

The material relied upon by Mr. Cox is essentially the affidavit evidence of Miss Massiter. Of the three applicants only Mrs. Ruddock has filed an affidavit. Apart from the undisputed facts and guidelines already recited, she deposes to only two relevant matters. The first is that Mr. Cox, in addition to his offices in the C.N.D., has long been active in the Communist Party. He became a member of the Young Communist League in 1949 and a member of the Communist Party of Great Britain (the "C.P.G.B.") in 1953. He has twice been on the executive committee of the C.P.G.B., his last term of office being November 1983 to May 1985. Secondly, Mrs. Ruddock deposes that after the showing on television of "M.I.5's Official Secrets" in March 1985, the Prime Minister asked Lord Bridge of Harwich to carry out an urgent investigation of the allegations of improper interception made in the programme. Lord Bridge was at that time not only a Lord of Appeal in Ordinary, but also the judicial monitor of the interception of communications. An extract from his report was quoted by the Prime Minister in a letter to Mr. Kinnock exhibited to Mrs. Ruddock's affidavit. The final two paragraphs of the extract are:

"I have sought and obtained from the Home Office and the Security Service all the documents which I felt could be of any assistance to me in determining whether the issue of a warrant was justified.

"I am satisfied, after full examination of all relevant documents, that no warrant for interception has been issued in contravention of the appropriate criteria."

Miss Massiter states that from 1981 until December 1983 she had the task of investigating "Communist and other forms of subversive influence and activity in the peace movement, including in particular the C.N.D." She describes the collection of information and the keeping of files about persons classified as subversive. During the late 1960s to the mid 1970s she says that the C.N.D. was classified as subversive because it was a "Communist dominated organisation." In the late 1970s, since its leadership was no longer dominated by members of the Communist Party, it was no longer regarded as subversive, but merely as a "Communist penetrated organisation." Nevertheless, she says, investigation of the C.N.D. and its leaders increased, and at the end she spent virtually all her time on it. She describes various sources and methods of acquiring information, other than interception. When Mr. Heseltine became Defence Secretary in January 1983 a briefing paper on the C.N.D. had to be provided for him. Such briefing on security topics was a matter of routine when a new minister took office. In March 1983 Mr. Heseltine set up a special unit, Defence Secretariat 19 ("D.S.19"), to combat C.N.D. propaganda on unilateral disarmament. Miss Massiter says D.S.19 requested information about any subversive political affiliations of C.N.D.'s leaders. M.I.5 provided non-classified information, but none from secret or classified sources.

Coming finally to telephone tapping, Miss Massiter refers to the criteria already summarised. Her affidavit goes on in paragraph 8:

"(b) In or about February 1983, I received a message via my branch director that the deputy Director-General of M.I.5 was prepared to consider favourably an application from me for a telephone intercept on a member of the Communist Party within the C.N.D. John Cox, a vice-president of the C.N.D., was selected since he was well known as a member of the Communist Party and had been involved in the C.N.D. practically since its inception. Also, he lived in Wales and therefore would need to be in frequent telephone contact with C.N.D. headquarters. However, we had absolutely no evidence, as required by the guidelines, that he was concerned in any criminal activity or that he was engaged in a major subversive or espionage activity which was likely to inJure the national interest. On the contrary, nothing from our coverage of the Communist Party and its Peace Committee gave us grounds to suspect that they were manipulating the C.N.D.

"(c) My application for a warrant to monitor Mr. Cox's telephone communications was made in April 1983. It simply stated that Mr. Cox was a long term member of the Communist Party and prominent in the C.N.D. and that it was desired to investigate his activities to ascertain whether the Communist Party was manipulating the C.N.D. in a clandestine way. In August 1983 the Home Secretary signed the warrant. It was renewed after one month and was still in force when I left in December 1983. Judging by our

previous experience, I do not think that the Home Secretary would have refused to renew it thereafter.

"(d) Pursuant to the warrant, an intercept was placed on Mr. Cox's telephone in or about August 1983 and I saw the products of the intercept in the form of transcripts of recorded telephone conversations. As Mr. Cox lived in Wales there was a fair amount of telephone communication between him and C.N.D. headquarters. He would routinely be in contact with the office and with, for example, Bruce Kent and Joan Ruddock. Accordingly, without intercepting their telephone communications we obtained a fair amount of information about their attitudes on quite a wide range of topics that were concerning the C.N.D. at the time. As to Mr. Cox himself, we obtained very little information that we did not already have, although perhaps a bit more detailed. My own assessment before we had the check would have been that he worked within the C.N.D. because he was a committed C.N.D. member rather than working in the C.N.D. in order to further the interests of the Communist Party. Certainly nothing that I recall seeing as a result of the intercept ever contradicted that assessment."

By a supplementary affidavit, Mrs. Ruddock exhibits a report in the "Daily Telegraph" of 23 April 1983. It concerns a letter sent by Mr. Heseltine to Tory candidates for the general election in June 1983 giving details of C.N.D. leaders' links with left-wing political parties. Miss Massiter in a supplementary affidavit dated 4 December 1985 says that the briefing paper for Mr. Heseltine was probably provided in late March or early April 1983.

Evidence for the Secretary of State

The only evidence on behalf of the Secretary of State is an affidavit from Sir Brian Cubbon, Permanent Under-Secretary of State in the Home Office since 1979. He deposes to three matters. First, it has been the invariable policy of successive Secretaries of State for the Home Department to decline in any circumstances to confirm or deny the existence of a warrant for the interception of communications. He gives the reasons as follows:

"They have done so because they have considered it essential if the purpose of authorised interception is not to be nullified. To disclose whether or not a warrant has been issued in a particular case could establish means whereby those involved in serious crimes or espionage or subversion could learn the extent to which their activities had come to notice or (perhaps more damaging) could in some cases confirm whether their activities had come to notice at all. The revelation of such information could jeopardise sensitive investigations essential to the nation's security, could place at risk the lives of those who had come forward with their suspicions to the police and could undermine the efforts of the police to prevent or detect serious crime. It is equally important that the practice of not confirming or denying the existence of a warrant is maintained consistently. Successive Secretaries of State have stated that only by the unvarying observance of this practice is it possible to ensure that in no circumstances is anything said or not said which, by comparison with what was said on a different occasion, might imply that a warrant had or had not been issued. In the view of successive

Secretaries of State it is essential in the interests of national security and of any other grounds for which a warrant may be issued that no such inference should ever be capable of being drawn."

Secondly, having accepted the criteria or conditions laid down in the 1980 white paper and Lord Harris's definition of subversive activity, Sir Brian Cubbon swears that all applications for a warrant pass under his scrutiny and no warrant has been issued which did not in his judgment meet those established conditions. Thirdly, he refers to observations by two judicial monitors. In 1981 Lord Diplock said, regarding the observance of the conditions, that the procedures for vetting applications before submission to the Secretary of State were appropriate to detect any departure from the proper standards. In relation to the material emanating from Miss Massiter, Sir Brian Cubbon cites Lord Bridge's observations which I have already quoted.

The Secretary of State's evidential stance is therefore, in accordance with the established policy, neither to admit nor deny the existence of the alleged warrant. But the prescribed criteria are recognised and it is said that no warrant has been issued which has not complied with them.

National security as a bar to judicial review

Basing himself on this evidence, Mr. Laws makes a bold submission, which if correct would halt this application in limine. He says that the court ought not to entertain it because to do so would be detrimental to national security. He relies upon the long-established policy that a Secretary of State does not disclose or discuss the existence of a warrant. Since the reason is that to do so would prejudice the operation of the Security Service upon which, ex hypothesi, the safety and well-being of the realm depend, he argues that it would be wrong for the court to investigate, discuss and make findings about the issue of a warrant for the same national security reasons. Mr. Laws conceded it is possible to imagine that if a Secretary of State admitted a telephone had been tapped, the situation could be different. But where, as here, the policy of silence has been followed and an application for judicial review invites departure from it, the court should decline to embark upon the exercise.

This argument raises a novel point. The cases to which I was referred regarding a plea of national security were concerned with undisputed acts or decisions. The issue has usually been whether the admitted act or decision was justified on grounds of national security. Thus in The Zamora [1916] 2 A.C. 77 it was whether an order to requisition a cargo was justified for the defence of the realm. In Reg. v. Secretary of State for Home Affairs, Ex parte Hosenball [1977] 1 W.L.R. 766 it was whether the Secretary of State's refusal to give information as to his reasons for making a deportation order was justified on grounds of national security. In the G.C.H.Q. case, Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, it was whether non-consultation with a union which had a legitimate expectation of being consulted was justified on grounds of national security. In each of those cases the court tried and decided the issue. But here, no admission is made as to the existence of a warrant, so national security is not raised to justify an undisputed act. It is raised to preclude the court from considering the application at all. There is no question here of confession and avoidance. Mr. Laws seeks avoidance without either confession or

denial. He relies upon the authorities mentioned above; in particular, two passages. The first is the well-known dictum of Lord Parker in The Zamora. Lord Parker said [1916] 2 A.C. 77, 107:

"Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a court of law or otherwise discussed in public."

The second passage is from the speech of Lord Roskill in the G.C.H.Q. case [1985] A.C. 374, 420:

"My Lords, the conflict between private rights and the rights of the state is not novel either in our political history or in our courts. Historically, at least since 1688, the courts have sought to present a barrier to inordinate claims by the executive. But they have also been obliged to recognise that in some fields that barrier must be lowered and that on occasions, albeit with reluctance, the courts must accept that the claims of executive power must take precedence over those of the individual. One such field is that of national security. The courts have long shown themselves sensitive to the assertion by the executive that considerations of national security must preclude judicial investigation of a particular individual grievance. But even in that field the courts will not act on a mere assertion that questions of national security were involved. Evidence is required that the decision under challenge was in fact founded on those grounds."

Mr. Laws emphasised the phrase "considerations of national security must preclude judicial investigation of a particular individual grievance." However, in The Zamora [1916] 2 A.C. 77 the court heard the case and decided that the Crown's plea of national security was not supported by the evidence. In the G.C.H.Q. case Lord Roskill also clearly indicated, as did other members of their Lordships' House, that evidence was required before a challenged decision could be defended on grounds of national security. That predicates two things. First, that the court must consider evidence and form a view. Secondly, that Lord Roskill was dealing with national security as a defence to a challenged decision, not as a plea in bar. The phrase "preclude judicial investigation" related to the investigation of a grievance where national security was raised as a plea in defence of the challenged decision. Once credible evidence was adduced in support of that plea, the court would not go behind it. The phrase was not, however, intended to mean that the court should decline to decide an application properly brought. That was made clear in the speech of Lord Scarman [1985] A.C. 374, 404:

"The point of principle in the appeal is as to the duty of the court when in proceedings properly brought before it a question arises as to what is required in the interest of national security. The question may arise in ordinary litigation between private persons as to their private rights and obligations: and it can arise, as in this case, in proceedings for judicial review of a decision by a public authority. The question can take one of several forms. It may be a question of fact which Parliament has left to the court to determine: see for an example section 10 of the Contempt of Court Act 1981. It may arise for consideration as a factor in the exercise of an executive discretionary power. But, however it arises, it is a matter to be

considered by the court in the circumstances and context of the case. Though there are limits dictated by law and common sense which the court must observe in dealing with the question, the court does not abdicate its judicial function. If the question arises as a matter of fact, the court requires evidence to be given. If it arises as a factor to be considered in reviewing the exercise of a discretionary power, evidence is also needed so that the court may determine whether it should intervene to correct excess or abuse of the power."

Lord Scarman then quoted Lord Parker's dictum from The Zamora [1916] 2 A.C. 77, 107 and commented: "These words were no abdication of the judicial function, but were an indication of the evidence required by the court." Finally, Lord Scarman said, at p. 406:

".. I conclude, therefore, that where a question as to the interest of national security arises in judicial proceedings the court has to act on evidence. In some cases a judge or jury is required by law to be satisfied that the interest is proved to exist: in others, the interest is a factor to be considered in the review of the exercise of an executive discretionary power. Once the factual basis is established by evidence so that the court is satisfied that the interest of national security is a relevant factor to be considered in the determination of the case, the court will accept the opinion of the Crown or its responsible officer as to what is required to meet it, unless it is possible to show that the opinion was one which no reasonable minister advising the Crown could in the circumstances reasonably have held. There is no abdication of the judicial function, but there is a common sense limitation recognised by the judges as to what is justiciable: and the limitation is entirely consistent with the general development of the modern case law of judicial review."

Mr. Laws does not challenge here the jurisdiction of the court to decide the issues raised. He bases his submission upon a plea to the court's discretion. In effect the plea amounts to this: the Secretary of State invariably maintains silence in the interests of national security on issues such as are raised here. The court in its discretion should do likewise, and since making findings to decide the case may break that silence, the court should, in Lord Scarman's phrase, abdicate its judicial function. I cannot agree with that, either as a general proposition or in this particular case. I do not accept that the court should never inquire into a complaint against a minister if he says his policy is to maintain silence in the interests of national security. To take an extreme and one hopes unlikely example, suppose an application were put before the court alleging a warrant was improperly issued by a Secretary of State against a political opponent, and suppose the application to be supported by the production of a note in the minister's own hand acknowledging the criteria did not apply but giving instructions that the phone be tapped nevertheless to see if anything discreditable could be learnt. It could not be sensibly argued that the department's invariable policy of silence should require the court meekly to follow suit and decline to decide such a case. At the other extreme, I recognise there could occur a case where the issue raised was so sensitive and the revelations necessarily following its decision so damaging to national security that the court might have to take special measures (for example, sitting in

camera or prohibiting the mention of names). Conceivably (although I would reserve the point) in an extreme case the court might have to decline to try the issues. But in all such cases, cogent evidence of potential damage to national security flowing from the trial of the issues would have to be adduced, whether in open court or in camera, to justify any modification of the court's normal procedure. Totally to oust the court's supervisory jurisdiction in a field where ex hypothesi the citizen can have no right to be consulted is a draconian and dangerous step indeed. Evidence to justify the court's declining to decide a case (if such a course is ever justified) would need to be very strong and specific.

What is the evidence here? Sir Brian Cubbon explains why it is the invariable policy of the Secretary of State neither to confirm nor deny the existence of a warrant in any case so that no inferences can be drawn in regard to that case or any other from what is or is not said by the Secretary of State or his department. But that policy is not vitiated if, in a case where evidence is before the court concerning an alleged warrant, the court proceeds to consider it. The Secretary of State's policy remains intact. He and his department maintain their silence. No inferences can be drawn about the given case or any later case from anything which they either say or do not say. Moreover, Sir Brian Cubbon does not say in his affidavit that it would be prejudicial to national security if the court were to make findings in this case. Mr. Laws has argued the court should not do so, but without any evidence to that specific effect. Apart from the plea to the court to follow the department's policy of non-disclosure, no other argument based on national security or the wider public interest was advanced. It was not, for example, suggested here, as elsewhere, that the need for M.I.5 to appear leak-proof should inhibit the court. No application was made that Miss Massiter's affidavit should not be read aloud, or that it should be heard in camera. Its main contents had already been relayed to the nation on television over a year ago. In these circumstances I see no grounds for refusing, as a matter of discretion, to deal with this application which I undoubtedly have jurisdiction to hear. I bear in mind that every citizen has a right to come to the courts for relief, and it is well established that, even where statute is relied upon, only the most clear and unequivocal words would entitle the courts to deny him access: see R. and W. Paul v. Wheat Commission [1937] A.C. 139, 153; Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1960] A.C. 260, 286; and Raymond v. Honey [1983] 1 A.C. 1, 14. Such clear and unequivocal words are now enacted in the Interception of Communications Act 1985. However, it did not come into force until 10 April 1986 and does not therefore apply to these proceedings.

Effect of the Act of 1985 on these proceedings

This brings me to a further submission of Mr. Laws. Since the Act of 1985 governs telephone tapping now and for the future, he argues that the present case is at most of academic or historical interest. It would therefore be inappropriate, even if grounds were established, for any relief by way of declaration to be granted. In short summary, the relevant provisions of the Act are as follows. Criteria governing the issue of a warrant to intercept are laid down in section 2. By section 7 the Act provides for a tribunal to consider complaints about interceptions. The tribunal has power, inter alia, to quash a warrant if a contravention

of section 2 is established and to award compensation. Decisions of the tribunal cannot be appealed or questioned in any court. By section 9 no evidence may be adduced and no cross-examination may be directed to suggest in any court or tribunal proceedings (other than proceedings of the section 7 tribunal) that a warrant has been issued. Section 8 creates the office of commissioner appointed by the Prime Minister to replace, in effect, the office of judicial monitor, i.e., to review the carrying out of the provisions of the Act and to report to the Prime Minister annually.

It is true, therefore, that under the Act the courts henceforth cease to have any supervisory or investigative function in the field of interceptions. But in my judgment, that does not make the present proceedings merely academic. Regarding matters which took place prior to the commencement of the Act, as did the matters in issue here, the court had and has a supervisory jurisdiction. If wrongdoing were proved, I do not think the court should shrink from declaring the fact simply because, if a similar situation arose in the future, the tribunal and not the court would be the appropriate forum. If a minister were proved to have failed unlawfully to abide by his own criteria, it may well be salutary that the court should so declare, lest a Secretary of State be tempted in the future to act similarly in regard to the now statutory criteria.

For the sake of completeness I should mention that all three applicants have already applied to the tribunal alleging breaches of the statutory criteria. On 7 July 1986 the tribunal notified them that after careful investigation it was satisfied no contravention of the criteria had occurred.

I now turn to consider the three issues raised on the evidence in this case.

Legitimate expectation

Mr. Sedley accepted that private law does not afford or protect any right of privacy, but he claims that in public law the power of the executive to invade privacy is open to judicial review. He referred to the European and the Universal Conventions on Human Rights; to the Fourth Amendment of the American Constitution; and to Malone v. United Kingdom (1985) 7 E.H.R.R. 14. That case concerned telephone tapping in regard to suspected criminal activities. The claimant had failed before Sir Robert Megarry V.-C.: Malone v. Metropolitan Police Commissioner [1979] Ch. 344. The European Court of Human Rights found there was a breach of article 8 of the European Convention, but said, at p. 44:

"In its present state the law in England and Wales governing interception of communications for police purposes is somewhat obscure and open to differing interpretations. The court would be usurping the function of the national courts were it to attempt to make an authoritative statement on such issues of domestic law."

Accordingly, although Mr. Sedley's citations form extra-domestic legal sources are of interest, he does not base his submission upon them. He relies upon an alleged breach of the criteria which he says the applicant legitimately expected to be faithfully applied. The issue can be put as follows. Did the publication of the criteria and repeated acknowledgment by successive Home Secretaries of their binding effect

give rise to a legitimate expectation enforceable by judicial review that no warrant would issue outside those criteria? Mr. Laws says the doctrine of legitimate expectation relates only to cases where the applicant's expectation is of being consulted or given the opportunity to make representations before a certain decision adverse to him is made. Since there can be no question of such consultation or opportunity to be heard before a warrant to intercept is issued, Mr. Laws contends that the doctrine of legitimate expectation does not apply in this field.

Since the phrase was introduced by Lord Denning M.R. in Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch. 149, 170, there has been a number of cases in which the doctrine has been applied, culminating in the G.C.H.Q. case [1985] A.C. 374 where it was ultimately overridden by a plea of national security. There, as in many of the cases, the expectation was one of consultation. Moreover, Lord Diplock in the G.C.H.Q. case phrased the doctrine in terms of an expectation to be consulted or heard. At p. 408 he said that to qualify for judicial review under this head the decision must affect the applicant:

"by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn."

Again Lord Diplock referred, at p. 413, to

"the prima facie rule of 'procedural propriety' in public law, applicable to a case of legitimate expectations that a benefit ought not to be withdrawn until the reason for its proposed withdrawal has been communicated to the person who has theretofore enjoyed that benefit and that person has been given an opportunity to comment on the reason."

Lord Roskill said, at p. 415:

"The particular manifestation of the duty to act fairly which is presently involved is that part of the recent evolution of our administrative law which may enable an aggrieved party to evoke judicial review if he can show that he had 'a reasonable expectation' of some occurrence or action preceding the decision complained of and that that 'reasonable expectation' was not in the event fulfilled.. . The principle may now be said to be firmly entrenched in this branch of the law. As the cases show, the principle is closely connected with 'a right to be heard.' Such an expectation may take many forms. One may be an expectation of prior consultation. Another may be an expectation of being allowed time to make representations especially where the aggrieved party is seeking to persuade an authority to depart from a lawfully established policy adopted in connection with the exercise of a particular power because of some suggested exceptional reasons justifying such a departure."

However, Lord Fraser of Tullybelton put the doctrine on a more general basis, at p. 401:

"But even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the courts will protect his expectation by judicial review as a matter of public law. This subject has been fully explained by my noble and learned friend, Lord Diplock, in O'Reilly v. Mackman [1983] 2 A.C. 237 and I need not repeat what he has so recently said. Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue."

Lord Fraser did not repeat the words of Lord Diplock in O'Reilly v. Mackman [1983] 2 A.C. 237, 275, but since they are in broader terms than those he used in the G.C.H.Q. case, I think it helpful to recall them.

"In public law, as distinguished from private law, however, such legitimate expectation gave to each appellant a sufficient interest to challenge the legality of the adverse disciplinary award made against him by the board on the ground that in one way or another the board in reaching its decision had acted outwith the powers conferred upon it by the legislation under which it was acting; and such grounds would include the board's failure to observe the rules of natural justice: which means no more than to act fairly towards him in carrying out their decision-making process, and I prefer so to put it."

It is true that Lord Diplock went on to indicate that one of the rules of natural justice he had in mind in that case was audi alteram partem: the applicant's right to be consulted or heard. But it is significant that he stated the doctrine in terms of a duty to act fairly, as did Lord Roskill in the G.C.H.Q. case.

In Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] 2 A.C. 629, Lord Fraser said, at p. 638:

"When a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty."

The same principle is to be found in two later cases. In re Findlay [1985] 1 A.C. 318 was an application for judicial review by Findlay and four other convicted prisoners who complained of a change of policy by the Home Secretary causing loss of their expectations of parole. Their applications failed. Lord Scarman said, at p. 338:

"But what was their legitimate expectation? Given the substance and purpose of the legislative provisions governing parole, the most that a convicted prisoner can legitimately expect is that his case will be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute. Any other view would entail the conclusion that the unfettered discretion conferred by the statute upon the minister can in some cases be restricted so as to hamper, or even to prevent, changes of policy. Bearing in mind the complexity of the issues which the

Secretary of State has to consider and the importance of the public interest in the administration of parole, I cannot think that Parliament intended the discretion to be restricted in this way."

I emphasise the phrase "in the light of whatever policy the Secretary of State sees fit to adopt" because it is implicit in that passage that the applicants could legitimately expect to be considered under the current policy. The complaint which failed was that the policy had been changed and the applicants should be excepted from the new one. If a complaint had been made out, however, that the applicants were being treated in a manner less favourable than the new policy required, the legitimate expectation defined by Lord Scarman would surely have been breached. This would have been so despite the lack of any right in the applicants to be consulted.

In Reg. v. Secretary of State for the Home Department, Ex parte Asif Mahmood Khan [1984] 1 W.L.R. 1337, the Secretary of State had issued a circular setting out the criteria he would apply in admitting children into the United Kingdom for adoption. The applicant sought judicial review of a refusal to admit a relative's child he wished to adopt on the grounds that the criteria had not been followed. In allowing the application on appeal, Dunn L.J. said, at p. 1352:

"Mr. Latham submitted on behalf of the Home Secretary in this case that there were no statutory provisions or rules, that the Secretary of State had an unfettered discretion, and that he was entitled to take into account a pre-eminent policy consideration, namely that leave would only be granted to bring a child here for adoption where there was to be a genuine transfer of parental responsibility on the ground of the natural parents' inability to care for the child.

"If the Home Secretary had done no more than to state that it was a matter for his discretion whether or not the child could be brought here for adoption, I should find great force in that submission. But the Home Secretary did not do that. He caused the circular letter in common form to be sent to all applicants setting out the four criteria to be satisfied before leave could be given. Thereby, in my judgment, he in effect made his own rules and stated those matters which he regarded as relevant and would consider in reaching his decision. The letter said nothing about the natural parents' inability to care for the child as being a relevant consideration and did not even contain a general 'sweeping up clause' to include all the circumstances of the case which might seem relevant to the Home Secretary.

"The categories of unreasonableness are not closed, and in my judgment an unfair action can seldom be a reasonable one. The cases cited by Parker L.J. show that the Home Secretary is under a duty to act fairly, and I agree that what happened in this case was not only unfair but unreasonable. Although the circular letter did not create an estoppel, the Home Secretary set out therein for the benefit of applicants the matters to be taken into consideration, and then reached his decision on a consideration which on his own showing was irrelevant. In so doing, in my judgment, he misdirected himself according to his own criteria and acted unreasonably."

On those authorities I conclude that the doctrine of legitimate expectation in essence imposes a duty to act fairly. Whilst most of the cases are concerned, as Lord Roskill said, with a right to be heard, I do not think the doctrine is so confined. Indeed, in a case where ex hypothesi there is no right to be heard, it may be thought the more important to fair dealing that a promise or undertaking given by a minister as to how he will proceed should be kept. Of course such promise or undertaking must not conflict with his statutory duty or his duty, as here, in the exercise of a prerogative power. I accept Mr. Laws's submission that the Secretary of State cannot fetter his discretion. By declaring a policy he does not preclude any possible need to change it. But then if the practice has been to publish the current policy, it would be encumbent upon him in dealing fairly to publish the new policy, unless again that would conflict with his duties. Had the criteria here needed changing for national security reasons, no doubt the Secretary of State could have changed them. Had those reasons prevented him also from publishing the new criteria, no doubt he could have refrained from doing so. Had he even decided to keep the criteria but depart from them in this single case for national security reasons, no doubt those reasons would have afforded him a defence to judicial review as in the G.C.H.Q. case [1985] A.C. 374. It is no part of the Secretary of State's evidence or argument here, however, that the published criteria were inapplicable, either because they had been changed or abandoned or because for good reason (e.g. national security) it was justifiable to depart from them. Sir Brian Cubbon's evidence amounts to an acceptance that the criteria were throughout regarded as binding and an assertion that all decisions under his purview have been made in accordance with them. So Mr. Laws's argument that providing he acts in good faith for a proper purpose the Secretary of State could grant a warrant outside the criteria and not be subject to judicial review is irrelevant on the evidence he has adduced.

As to the strength of the legitimate expectation here, not only were the criteria repeated publicly in similar terms some six times between 1952 and 1982, the Home Secretary in office at the relevant time adopted them in the most trenchant terms which Sir Brian quotes in his affidavit as follows: "I would authorise interception only in those It would be hard to imagine a stronger case of an expectation arising in Lord Fraser's words "either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue." Here it was both.

Before leaving this issue, I should mention a point reserved by Mr. Laws. The power exercised, if and when the Secretary of State grants a warrant, is a prerogative power. Moreover it is a direct exercise of the prerogative and not, as in the G.C.H.Q. case, indirect by way of delegation under an Order in Council. Since three of their Lordships in the G.C.H.Q. case said the exercise of a prerogative power was reviewable whether exercised directly or by way of delegation, Mr. Laws has properly declined to argue the point before me, but he reserves it should the case go further.

The two remaining issues are therefore (1) was a warrant issued to intercept phone calls on John Cox's line, and (2) if so, was it issued in breach of the criteria?

Issue of a warrant

Miss Massiter deposes that in April 1983, after prompting, she applied for a warrant to tap Mr. Cox's phone; that in August 1983 the Home Secretary signed such a warrant; and that it was renewed after a month. She goes on to say that pursuant to that warrant the phone was tapped and she saw the products in the form of transcripts. This is evidence of primary fact. In saying that, I do not propose to quibble that she does not say she saw the Home Secretary sign the warrant, or saw the warrant with his signature upon it, or that she did not herself tap the phone or hear the recording. There is nothing to contradict her evidence as to those primary facts. I see no reason to disbelieve or reject it. Accordingly, I find that in all probability those facts are true and a warrant was issued.

Did the Secretary of State issue the warrant outside the criteria either knowingly or irrationally? I pose this question in the alternative because Mr. Sedley puts his case in two ways. His primary submission is that the warrant was outside the criteria to the Secretary of State's knowledge, because he issued it for an ulterior and improper purpose, namely, to gain party political advantage. This allegation, if made out, is said to amount to misfeasance in a public office as defined in Bourgoin S.A. v. Ministry of Agriculture, Fisheries and Food [1986] Q.B. 716. The three ingredients of that tort were said in that case to be: (1) that a public officer knew he had not power to do that which he did; (2) that he knew his act would inJure the plaintiff; and (3) that it in fact did so. Clearly this is a grave charge to level against a minister, and to establish it would require proof to a high degree of probability. Only if such misfeasance were established would the applicant's amended claim for damages arise, although Mr. Sedley seems to have added it simply as a second string of relief should Mr. Laws's argument against granting an academic declaration be accepted.

Secondly, Mr. Sedley submits that even if the Secretary of State did not knowingly flout the criteria and honestly believed they applied, such a view was "Wednesbury unreasonable" or irrational as defined by Lord Diplock in the G.C.H.Q. case [1985] A.C. 374.

In considering the material supporting these submissions, it is important to distinguish between primary fact on the one hand and evidence of opinion, inference and speculation on the other. In contrast to her evidence about the issue of the warrant, which I have accepted, those parts of Miss Massiter's evidence relied upon here fall largely into the latter three categories. Let me give an example of each.

In paragraph 8(d) of her affidavit, Miss Massiter says:

"My own assessment before we had the check would have been that he worked within the C.N.D. because he was a committed C.N.D. member rather than working in the C.N.D. in order to further the interests of the Communist Party."

That is clearly opinion evidence. Moreover the phrase "my own assessment" is pregnant with the corollary that others might form a different assessment.

In paragraph 8(c) of her affidavit the witness describes her application for a warrant in April 1983 and goes on: "In August 1983 the Home Secretary signed the warrant." From that evidence I am asked to say that, despite the lapse of time, the warrant was issued in response to and only in response to Miss Massiter's application. That, at best, is a

matter of inference, but may also involve an element of speculation. At the end of the same sub-paragraph the witness says:

"It was renewed after one month and was still in force when I left in December 1983. Judging by our previous experience, I do not think that the Home Secretary would have refused to renew it thereafter."

To conclude from this that renewals continued involves not merely inference from previous experience, but pure speculation as to whether there was any further request for a further renewal.

Misfeasance

In support of the misfeasance argument Mr. Sedley relies upon several matters as indicating an improper party political motive. First, the briefing paper to Mr. Heseltine; but Miss Massiter says that was a routine matter. Moreover, it did not involve any surveillance to which the criteria apply. Next, the information provided to D.S.19. But again this involved no interception. The information passed was derived from normal surveillance methods and included nothing classified or secret.

Much reliance is placed on the timing of the "Daily Telegraph" article reporting a letter from Mr. Heseltine, Defence Secretary, to Conservative candidates in the general election. The article was published on 23 April 1983. Miss Massiter says the M.I.5 report to D.S.19 was probably in late March or early April. I am asked to infer that improper use was made by Mr. Heseltine of the information passed in that report. However, there are a number of obstacles to drawing such an inference. (a) Miss Massiter does not say the information contained in the quotation from the letter is recognisable as, or accords with, or could only have been that contained in the M.I.5 report. (b) In fact, the information Mr. Heseltine gave about John Cox seems unlikely to be that which M.I.5 would or could have given in the report. Mr. Heseltine simply lists John Cox among the elected members of the National Council of the C.N.D. and says of him "Communist for many years." In fact, as already indicated, he was vice-president of the C.N.D., having been chairman from 1971 to 1977, and had been on the executive committee of the C.P.G.B. If Mr. Heseltine had been using the report sent to D.S.19 it is surprising that those telling details were not spelt out. (c) As to impropriety, even if Mr. Heseltine's information was from M.I.5 via D.S.19, no surveillance methods to which the criteria applied were used to obtain it. No challenge has been made, nor any relief sought, arising from any decision or act of Mr. Heseltine save for this argument, despite an inquiry of the applicants by the Treasury Solicitor after receipt of their affidavits. (d) Finally, on this issue I do not think what is done by government for the purposes of national security and what may assist it against a party in opposition are necessarily mutually exclusive or severable.

The evidence and suggested inferences so far reviewed on this issue are in effect relied upon as "similar facts" to support the culminating and only relevant submission that the impetus to seek and grant the warrant had a party political motive. Here, timings seem to me to be of crucial importance. Miss Massiter says she was in effect invited to apply for a warrant in or about February 1983. She applied in April. The general election was in June. The warrant was not signed until August. One is well aware that government departments do not always move at

lightning speed. However, if the issue of this warrant and the seeking of it was for party political purposes, it is hard to credit that four months would be allowed to pass between application and warrant thereby losing any advantage the tap might have afforded at the general election. The lapse of time suggests there was no party political motive. It also suggests that there may well have been other material considered, apart from that within Miss Massiter's knowledge, before the warrant was issued. Otherwise it is hard to see why the response to her application alone, which she says she was told would be favourably considered, should take four months.

Looking solely at the evidence adduced by the applicants and the inferences properly to be drawn from it, and without even putting in the balance Sir Brian Cubbon's evidence, I conclude that there is no ground for imputing misfeasance to the Secretary of State. The evidence does not support either directly or by inference an ulterior motive or deliberate flouting of the criteria by the Secretary of State.

Irrationality?

The test here is the familiar one deriving from Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 as restated in the G.C.H.Q. case [1985] A.C. 374. It is not whether in the opinion of this respondent Secretary of State there was reasonable cause to believe that the applicant was involved in subversive activity. But, by the same token, the test here is not whether Miss Massiter considers the case fell within the guidelines either. What the court must do is to look at all the evidence of fact and opinion and decide whether it shows that no reasonable Secretary of State could have concluded the criteria applied. Lord Diplock put the test starkly in the G.C.H.Q. case, at p. 410:

"'Wednesbury unreasonableness' .. applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."

Miss Massiter deposes without criticism that the C.N.D. was regarded as subversive because it was "Communist dominated" until the late Therefore, she says: "Our study should have been limited to those members who were also members of the Communist Party or other persons recognised as subversive." That seems to imply and accept that even after the late 1970s Mr. Cox would properly have been regarded as subversive.

Mr. Sedley relies on Miss Massiter's evidence at paragraphs 8(b), (c) and (d) of her affidavit which I have already read. That shows, he submits, that there was no evidence John Cox was actually engaged in subversive activity; also that the object of the warrant was a fishing expedition to see whether such activity was going on and not to intercept activity reasonably believed to be already in progress.

This assumes (a) that the Secretary of State had no more information than Miss Massiter; (b) that she has given all the information she has in her affidavit; and (c) that in so far as those sub-paragraphs of her affidavit express Miss Massiter's opinions or judgments, they are correct. As to head (a), Miss Massiter no doubt had a responsible position as intelligence officer. But she was well down the hierarchy. From her own

evidence there were above her on the ladder to the Secretary of State at least the deputy Director-General of M.I.5, the Director-General and Sir Brian Cubbon. Nothing in her affidavit or in common sense suggests that she was the only source of information available to those above her and, ultimately, to the Secretary of State. As to head (b), she says herself in explanation of the delay:

"I have been very concerned to ensure that the matters which I have disclosed should be strictly limited, and it has always been my concern to see to it that I should say nothing which might be genuinely damaging to the security of the state. This has made the preparation of my evidence a difficult and sensitive task requiring careful judgment, concentration and attention to detail."

As to head (c), I have already quoted the passage beginning "My own assessment.." No doubt Miss Massiter was there expressing an honest opinion. But the question is whether the contrary view is one which would be so outrageous in its defiance of logic that no sensible Secretary of State could have arrived at it.

Before leaving the evidence for the applicant, I should record that there is no affidavit from the applicant John Cox to support his case that he was wrongly adjudged to be within the criteria.

I turn now to the evidence of Sir Brian Cubbon. His good faith has not been challenged. He must be taken therefore to have formed the honest opinion that this warrant (because all that were issued came under his scrutiny) was within the guidelines. Whilst by no means conclusive, his opinion is a relevant matter for my consideration, as is the fact that the Secretary of State himself, not being guilty of misfeasance or improper motive, must have been of the same opinion. I also consider I am entitled to have regard to Lord Bridge's findings, although Mr. Sedley challenged this on the principle of res inter alios acta. He referred me somewhat late in the proceedings to Hollington v. F. Hewthorn & Co. Ltd. [1943] K.B. 587. There is no doubt that Lord Bridge inquired into Miss Massiter's allegations. His findings are before me because they were exhibited via the Prime Minister's letter to Mrs. Ruddock's affidavit. It is true that Lord Bridge did not have the affidavits that are before me, although he must have known of Miss Massiter's contribution to the television programme. On the other hand, he had access to all the documents which he felt could be of any assistance to him in determining whether the warrant was justified. I have not seen any such documents. Manifestly the assistance that I can properly derive from Lord Bridge's findings must be very limited. However, at the very least I consider that I am entitled to draw from them the probability that the Secretary of State's policy of silence and reticence regarding the Security Service has not screened from my sight documents which would have supported the applicants. To that very limited extent, I have regard to Lord Bridge's findings, although my conclusion upon the evidence actually before me would have been the same without them.

That conclusion is that no irrationality in regard to the challenged decision is established. In view of the evidence as to the history of the C.N.D., in its period of "Communist domination" followed by its period of "Communist penetration," vigilance was clearly required. The criteria placed a duty on the Security Service to keep up to date its information covering subversion (see the Birkett report). The applicant John Cox

was involved at the highest level in both the and in the late 1970s when the C.N.D. was growing. The applicant's case depends upon the evidence and opinions of Miss Massiter with those weaknesses which I have identified. Against it is the evidence of Sir Brian Cubbon and his judgment that the criteria were always honoured.

I find it impossible, upon the material before me, to hold that the Secretary of State's decision that a warrant was justified by the criteria was outrageous in its defiance of logic. That being so, these applications must be refused.

Solicitors: Bindman & Partners; Treasury Solicitor.

[Reported by PAUL NIEKIRK, ESQ., Barrister-at-Law]